A year after Dobbs, advocates across the States are pushing for birth control rights

A year after Justice Clarence Thomas said the Supreme Court should reconsider whether the Constitution gives Americans a right to birth control, Democrats and reproductive rights advocates are laying the groundwork for state battles over access to contraception – an issue they hope to resolve against Republicans in 2024.

The judge’s reasoning in Dobbs v. Jackson Women’s Health Organization, the case that overturned Roe v. Wade and abortion rights, sparked the reproductive rights movement. House Democrats and eight Republicans promptly passed legislation that would have created a national right to birth control. Republicans blocked an accompanying bill in the Senate.

Now advocates of reproductive rights in the states are pushing their case. Prior to Dobbs, some states had taken steps through legislation or constitutional amendments to protect the right to contraception; According to KFF, a health policy research organization, 13 states and the District of Columbia currently have such protections in place.

This month, the movement appeared poised for victory in Nevada, where the Democratic-controlled legislature, backed by a handful of Republicans, passed a bill that would have guaranteed a right to contraception. But on Friday, Gov. Joe Lombardo, a Republican, quietly vetoed the measure. Proponents of codifying such a right viewed Nevada as a test case.

“It’s up to Republicans to decide whether they want to protect the right to contraception,” said Senator Edward J. Markey, a Massachusetts Democrat and supporter of the failed Senate bill, in an interview before the governor’s veto. Mr Markey called the Dobbs decision “a preview of atrocities to come”.

On Wednesday, Mr. Markey and North Carolina Democrat Rep. Kathy Manning reintroduced legislation to create a national right to contraception. With the House of Representatives now controlled by Republicans and Senate Democrats well below the 60 votes it takes to break a filibuster, the law is most likely dead by the time it gets to Washington.

Polls have consistently shown broad bipartisan support for access to contraception, and while Republicans may not be interested in enshrining a right in federal law, they also don’t want to ban it altogether. Still, there is some resistance to birth control.

The Roman Catholic Church opposes all forms of artificial birth control, arguing that some contraceptives “can cause early abortions.” Some anti-abortion advocates claim that two common methods of birth control — intrauterine devices and emergency contraception, also known as the morning-after pill and marketed as plan B — are “abortifacients” that prevent a fertilized egg from implanting in a woman’s uterus.

However, the American College of Obstetricians and Gynecologists says that IUDs “work primarily by preventing sperm from fertilizing an egg.” And the Food and Drug Administration said last year that Plan B does not prevent implantation of a fertilized egg in the uterus and cannot be considered an abortion pill.

Critics of codifying a contraceptive right say such a law presents a no-brainer solution — or is simply a political gesture designed to put Republicans in a tight spot and encourage voters to reject them at the ballot box.

“Most Republicans saw it as a political vote, not really a serious vote,” said John Feehery, a Republican strategist, of last year’s vote on the House bill. “There is a small but vocal element in the Republican coalition that opposes contraception, but the vast majority of Republicans have no interest in making contraception illegal.”

Since the Dobbs decision, debates about birth control have also become increasingly linked to abortion. Some Republicans who voted against the House bill complained that it would have sent more money to Planned Parenthood, an organization that many in the party target because it is a major provider of abortions. Rep. Cathy McMorris Rodgers, a Washington Republican, called the bill a “Trojan horse for more abortions.”

Judge Samuel A. Alito Jr. represented the majority in the Dobbs case, emphasizing that the ruling “affects the constitutional right to abortion and no other right.” But in a unanimous opinion, Justice Thomas said the Supreme Court should reconsider other rulings, including Griswold v. Connecticut, a 1965 decision that established the right of married couples to use contraception. He said the logic of majority opinion in Dobbs undermined Griswold.

“For years we have been asking elected officials across the country to pay more attention to the merging of abortion and contraception,” said Clare Coleman, president and executive director of the National Family Planning & Reproductive Health Association, which represents health care providers. “We shouldn’t have to answer the question, ‘Why are we worried?’ question more.”

Ms. Coleman and her allies in the movement say complacency has cost American women abortion rights. They also feel worrying about efforts to restrict access to birth control.

In 2021, Missouri Republicans sought to ban taxpayer funding for intrauterine devices and emergency contraception. Missouri is one of four states — the others being Arkansas, Mississippi, and Texas — that have banned Planned Parenthood, a major birth control provider, from their Medicaid programs.

At the same time, Texas’ state family planning program Title If the ruling is upheld, it could jeopardize underage access to contraceptives statewide.

So far, however, the Dobbs case hasn’t led to the sweeping attacks on birth control that advocates feared. According to the Guttmacher Institute, which tracks reproductive health efforts, access to contraceptives has actually been expanded in a few states.

In Indiana, Gov. Eric Holcomb signed legislation allowing pharmacists to prescribe contraceptives. In West Virginia, Gov. Jim Justice signed a bill mandating insurance plans to cover 12-month supplies of contraceptives from pharmacies. In Arkansas, Gov. Sarah Huckabee Sanders signed legislation requiring Medicaid to cover intrauterine devices and other long-acting reversible contraceptives for women who have just given birth. All are Republicans.

The drive for legislation establishing the right to contraception comes at a time when the FDA is considering allowing over-the-counter pills to be sold for the first time. An advisory panel to the agency said last month that the benefits of over-the-counter birth control outweigh the risks. Pending possible FDA action, Senate Democrats recently reintroduced legislation that would require insurers to cover over-the-counter birth control.

But Sen. Catherine Cortez-Masto, a Nevada Democrat and one of the bill’s main backers, said she doesn’t know if proponents of the measure could garner any Republican support in the current post-Dobbs climate. “We think we should,” she said, “but you know, it’s a different and challenging time right now.”

In North Carolina, the Dobbs case and abortion policy have doomed a bill confirming contraceptive rights, said State Senator Lisa Grafstein, a Democrat who introduced the measure. Ms. Grafstein said in an interview that she has spoken to at least one Republican interested in becoming a co-sponsor.

But that was before the state legislature decided to ban most abortions at 12 weeks.

“When the abortion debate started, there was no more discussion of such issues,” Ms. Grafstein said. “The tenor of things has really changed a lot in terms of whether such a conversation would even be possible at this point.”

Even in Nevada — a state where voters passed abortion rights in a referendum more than three decades ago, in 1990 — the bill’s supporters found it difficult to get Republicans to approve it. Her main sponsor, Rep. Selena Torres, a Democrat, said in an interview before the veto that abortion was at the center of the legislative debate.

“It was a very different issue from abortion,” Ms. Torres said. “But I think the Dobbs decision is ultimately the catalyst for this conversation.”

Proponents of codifying contraceptive rights hoped to use Nevada as a model for other states, and also to put pressure on Republicans in Congress. Americans for Contraception, an advocacy group that has orchestrated the strategy from state to state, last year ran ads attacking Republicans who voted against the House bill. It issued a statement on Friday night saying Mr Lombardo had “showed his extremist colour”. A spokeswoman for the governor did not respond to a request for comment on the veto.

Americans for Contraception says it has called on Democratic lawmakers in five other states — Arizona, Mississippi, Tennessee, Virginia and Wisconsin — to introduce bills guaranteeing the right to contraception next year.

“Last year, 195 Republicans in the House of Representatives attempted to oppose contraceptive rights by voting against a simple bill,” said Dana Singiser, a senior adviser to the group, after the passage of Nevada’s bill. “Nevada shows that some of their state-level peers recognize that supporting the right to contraception is a policy and a political given.”

In Washington, there’s an explanation for why so many Republicans voted against the House bill: Susan B. Anthony Pro-Life America, an anti-abortion group, decided to add the vote to their lawmakers’ checklist.

The organization derided the measure as the “Payouts for Planned Parenthood Act” and said it would “trample rights of conscience” in states where health care providers or pharmacists are allowed to refuse to provide birth control. The group claimed that the bill’s definition of contraceptives – “any drug, device or biological product intended to prevent pregnancy” – is too broad and could be construed to include abortion pills.

“If you’re a Republican, you want to be seen as pro-life, and the Susan B. Anthony group is helping define who is pro-life,” said Mr. Feehery, the Republican strategist, adding, ” I think most of all.” Republicans would much rather side with Susan B. Anthony than with Planned Parenthood.”